Judicial Nominations and the Prisoners’ Dilemma
Whipping and counter-whipping
Everyone knows the prisoners’ dilemma. It’s a classic game theoretic model that helps explain how external actors can break collusion. As a parent of twins, and notwithstanding the Geneva Convention prohibition on collective punishment, I apply the lessons of the PD in my daily life. If two or more individuals are united against you, you merely offer each an increasing incentive to defect to your side, and/ or decrease the collective reward for them remaining opposed to you. At some point, if they are self-interested and rational, they will break their agreement with the other malefactor and join your side.
Presidential nominations to Senate-confirmed positions can be seen as a prisoners’ dilemma. Collectively, nominees have incentive for the Senate inquiry to be low. Collectively, they have incentive to say nothing. Presidents want their nominees to sail through. Senators have the opposite incentive—they generally want to exert maximal influence. So we get rules of the road.
But individual nominees who are just shy of the majority threshold have strong incentive to say and do whatever it takes to get confirmed. That means individual district and appeals court nominees actually want to answer lots of questions, if that means the difference between confirmation and failure. Even in an environment where nominees are told by DOJ (presumably the Office of Legal Policy, and I have been in on these practice runs and heard this said) and the White House Counsel that they should never opine on individual legal cases, individual nominees will occasionally do so. They will “defect.”
They do so not because they are dumb, indeed these are often litigators with years of courtroom experience and who are trained to not make a verbal slip. Rather, they do so because they are smart, and often their agreement that a particular case was rightly decided will actually defuse tension and allow their nomination hearing to proceed. But if one nominee answers a question about Roe, it makes it that much harder for the next nominee to decline to answer a question about Roe. Prisoners’ dilemma.
Setting aside genuine ideological irrationality, and setting aside those who anticipate SCOTUS nomination (repeat players), this is a classic PD.
The fact that so many nominees follow this strategy is telling. And having witnessed nominees get advice in at least three different types of semi-private “murderboard” situations, many times, I can say that the arguments one sees are exactly what you might expect. First, “we are the experts.” Don’t trust your gut, trust us. You might feel pressure, but it’s fake pressure, and don’t worry, we have the votes. Trust the plan.
Second, “don’t make this hard for others.” Don’t make the news, and don’t be a bad guy. You don’t want to be subject to social sanctions, do you? You don’t want to be the Federalist Society pariah. Stick to the script.
And yes, third, “if you don’t stick to the script, your nomination might get pulled.” Now, there’s no reason a nominating President would care about this. But in a White House with McConnell staffers running legislative affairs and with a White House Counsel and DOJ stuffed to the gills with individuals who couldn’t care less about the President, but who seriously care about “muh courts,” the delegated ability to pull a nomination makes this threat real.
I do believe that this unwillingness to deviate, and this whipping, can be explained only partly by taking seriously the microeconomic argument that this is herd behavior. I think it makes much more sense as an ideological move. Left wing nominees can duck questions just like the right wing ones, but they are much more willing to opine on lines of cases normatively. Why? Because the democratic caucus won’t punish them for it, and their ideological tent is much better defined.
But on the right, if a nominee opined “wrongly” on substantive due process, as might have motivated Hawley’s short hold on Rao, this could cause all sorts of intra coalition strife. This is because the Federalist Society tent is, as is daily more obvious, not as unified. Phrases like constitutionalism, or originalism, and tactics like “no opining on cases that might come before me” are efforts to hide disagreement and allow incumbent power brokers to drive the train without dissent.
So, if I’m Senator Hawley, or another senator wanting to inject healthy politics back into the system, I tell each Biden nom privately, or I perhaps announce publicly, that I will never vote for nominee unless that nominee picks one line of cases that they think ought to be overturned, and testifies as much publicly. They can choose! And I signal this applies to GOP package judges as well. We need to be breaking the disfunction now, while we are in the minority.